In Memory of Professor Gil Kujovich

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Gil KujovichMy good friend Professor Gil Kujovich passed away on December 14.  He was a long-time beloved teacher at Vermont Law School who was one of the kindest and smartest person I met during my time teaching there.

Gil served in the Vietnam War and then attended Harvard Law School, where he was an articles editor of the Harvard Law Review.  He then went on to clerk for Judge Shirley Hufstedler of the U.S. Court of Appeals for the Ninth Circuit and for Justices Potter Stewart and Byron White of the U.S. Supreme Court. He then served in various positions in the Carter Administration, including  as counsel to the White House Intelligence Oversight Board from 1979 to 1980 and then as assistant to the U.S. Secretary of Education.  He joined the Vermont Law School faculty in 1981. During the consideration of civil union (same-sex marriage) legislation by the Vermont Legislature in the early 2000s, he testified numerous times before the House and Senate Judiciary committees.

Gil was deeply committed to the ideals of justice and racial equality and carried out those values by mentoring many of Vermont Law School’s students of color, including Shirley Jefferson who went on to become Vermont Law School’s Associate Dean for Student Affairs and Diversity.  Vermont Law School carried a tribute that provides the remembrances of many students and colleagues.  His kindness both as a teacher and colleague and his generosity of spirit left a lasting impression on all he came into contact with, especially myself.   Both I and my wife Tinling will miss him dearly.   (The picture of is of me with Gil and his wife Joni in 2003 or thereabouts.)

SummerwiththeKujovichs

ESG Investing is on the Rise as Investors Realize Good Environmental Practices are a Good Proxy for Strong Management and Higher Profits

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By Si Jun Lee

According to August 2017 reports by Bank of America, “ESG” investing has grown by more than 97% globally in the past 20 years. ESG investing refers to the practice of using environmental, social, and governance criteria to screen and select companies for investment. Environmental criteria consider how a company manages its environmental resources and responsibilities; social criteria look at the company’s impacts in the communities where it does business; and governance criteria examine a company’s corporate structure and transparency.

While ESG investing was traditionally viewed as a niche investment strategy for the socially-conscious crowd, more mainstream investors are coming to the realization that strong ESG performance is an indicator of strong and effective management. CEOs that act responsibly in managing environmental impacts also approach other factors in their business in a more sustainable way, which means their business are more profitable over the long-term and deliver better returns to their investors. A 2014 study by the firm CDP found that companies that plan for environmental changes achieves return-on-investment (ROI) that is 18% higher than companies that do not plan for environmental change, and 67% higher ROI than companies that refuse to disclose their emissions.
BofA estimates that the amount of assets managed under ESG funds have gone from less than $100 billion in 1995 to $8.72 trillion in 2016, and women and Millennials investors are the two primary groups driving the sharp increase. A recent survey by Nielsen indicates that 90% of Millennials and 80% of women investors show an interest in ESG strategies, and are willing to pay extra for sustainable offerings.

Increased interest in ESG strategies has not gone unnoticed by corporate boards. Most global companies now issue Corporate Responsibility reports. Many mid-size companies are also starting to incorporate ESG considerations, to some extent, in their business planning.

But despite the progress, there are still significant barriers to ESG investing. One is the lack of uniform and comparable ESG reporting data. While many companies offer Corporate Responsibility reports, they often cover different issues and rely on different metrics. If the growth in ESG investing continues on the same trajectory, however, it is likely that the marketplace will adapt to develop more uniform and reliable standards as companies compete for a bigger share of ESG investment dollars.

The Paris Climate Agreement Math, in Terms a NY Real Estate Developer can Understand

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By Si Jun Lee

The $100 billion Green Climate Fund figure at the center of the Paris Agreement has been singled out for criticism by both supporters and critics alike.

On one hand, President Trump’s assertion that the Green Climate Fund will require the U.S. to pay “billions and billions and billions of dollars” while “many of the other countries haven’t spent anything, and . . . will never pay one dime” is inaccurate.

First, the Green Climate Fund is an outgrowth of the 2010 Copenhagen Climate Agreement.  It stipulated that 37 developed countries plus the European Union would “mobilize”—not “give”—a combined $100 billion in climate finance to developing countries by 2020.  That figure, however, includes only $10.3 in direct aid from developed countries, with the rest coming from private investments and voluntary contributions from other countries.   When the Paris Climate Agreement was signed in 2016, the total amount “mobilized” was already at $66.8 billion, with little coming from direct aid.  Second, other countries are paying as well.  The U.S. committed $3 billion of direct aid, but only paid $1 billion before President Trump reneged on the remaining $2 billion commitment.  According to the Green Climate fund’s Pledge Tracker, the majority of countries that pledged funds under the Agreement have already paid in full.  Others have paid significant sums as well: the UK $770 million, Japan $750 million, Germany $500 million, France $450 million, Canada $187 million, etc.

On the other hand, there is some truth in the sense that the financial burden has been uneven.  China and India have not committed any funds, and it is also no secret that the reason many developing countries joined for the Paris Agreement may well be to get a slice of the $100 billion pie, as evidenced by the Climate Action Plans submitted by developing countries uniformly requesting financing for action.  From a common sense perspective, a focus on climate change at the moment makes little sense for countries like Yemen, which is currently struggling with the aftermath of a long civil war and crippling hunger and disease epidemics.  Yet Yemen signed on to the Paris Climate Agreement and submitted a Climate Action Plan ahead of schedule, indicating it could institute programs to reduce its carbon emission by 1-14% conditional upon obtaining international financing for its climate program.  Despite the fact that the Green Climate Fund invests in specific projects and does not distribute money to countries for self-implementation, there is still some skepticism that—without strong oversight on a local level—there is a risk that funds intended for climate programs could dissipate through graft and corruption in some countries.

This does not mean, however, that the U.S. decision to walk away from the Agreement was financially wise.  The pre-Trump U.S. approach in supporting the Green Climate Fund is a strategy that President Trump should understand well from the real estate world.  It was designed to leverage a small direct investment to raise a substantially larger sum from other players for a global project that it could not—and should not have to—finance on its own.  The international goal of mobilizing $100 million by 2020 once seemed reachable, even with a relatively low commitment of direct aid from the U.S.  President Trump’s withdrawal now sends a strong signal akin to a lead investor pulling out of a real estate development deal at the last minute.  The U.S.’s departure won’t help convince China and India to do more (unless they see economic opportunities in the power vacuum).  Worse yet, it sounds the alarm for other private investors to pump the brakes on climate projects around the world.

While President Trump’s decision saved the U.S. $2 billion in short term cash, this pales in comparison to what the U.S. stands to lose from continued climate change.  According to a September 2017 study by the U.S. Government Accountability Office (GAO), U.S. agricultural, health, and labor sectors all suffer measurable economic impact from global emissions in other countries.  In addition, spending to respond to climate-change related natural disasters has cost the U.S. over $350 billion in the last decade.  And these costs are rising rapidly as climate change becomes more accelerated.  The GAO report, in fact, urged the Trump administration to take action to protect the environment before it starts costing the country more money in the long term.  Ironically, the Green Climate Fund was a way for the U.S. to accomplish exactly this goal… largely using other people’s money.

Amah Mutsun Tribal Band Granted Cultural Conservation Easement on Summit of Mount Umunuhm

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MtUmunhumCulturalEasement

On Wednesday, the Board of the Midpeninsula Regional Open Space District voted to grant a 36 acre cultural conservation easement at the top of Mount Umunuhm to the Amah Mutsun Tribal Band.  [Also San Jose Mercury News reporting.] The decision essentially confers rights to carry out tribal ceremonies and other cultural activities, including building a garden, in the area where there is also now a public park.  (Mount Umunhum is a new regional park with gorgeous views of the South Bay area that just opened a few months ago.  Since it is only a half an hour away from my home, a hike there has been on my to-do  list.)  According to the Open Space District, “Mount Umunhum is a sacred site to the Amah Mutsun people and is central to their creation story.”

While the decision has attracted some controversy, it seems to me to be a generous and worthy gesture of a public agency to help this tribe preserve its cultural heritage.  It is also designed to right some of the historical injustices that Native Americans have suffered, especially displacement from their ancestral lands.  For non-Native Americans, this step helps to recognize the important role that Indian Tribes have played in this country’s history and their continuing inextricable importance to our nation’s broader culture.

Given that I have never heard of a government agency doing anything like this before, this step may set an important precedent for other local and state government agencies in their interactions with Native groups.

Interestingly, public recognition of this tribe’s ancestral connection to these lands also touches my own institution, Santa Clara University.  According to the Mercury News, “the Amah Mutsun is made up of about 600 descendants of Ohlones, who once inhabited the area south of San Jose, and now largely live in Central Valley towns.”  The Ohlone Indians make up the Native American community that Mission Santa Clara Mission de Assis, founded by Father Junipero Serra, originally was designed to serve and to convert to Christianity.  That mission still stands in the heart of the Santa Clara University campus and was the origin of the present-day university.  Yet, unlike the Midpeninsula Regional Open Space District, I am not aware of Santa Clara University formally recognizing the Ohlone Indians’ contributions to and past relationship with the University (beyond references in the University history).  (It happens to be an issue that I am asked about surprisingly frequently by visitors.)

Zero-waste cities will be the reality soon:  Is that a good thing?

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By Si Jun Lee

Zero Waste is a philosophy that encourages use of recycling, reusing, and composting to divert waste from being sent to landfills or incinerators.  The movement originated in the mid-1980s, when PhD chemist Paul Palmer founded Zero Waste Systems in California with the goal of finding new homes for most of the chemicals being excessed by the electronic industry.  In the last 10 years, however, the movement has transitioned from theory into action.  A number of large U.S. cities—including New York, Los Angeles, San Francisco, San Jose, Seattle, Austin, etc.—have already adopted plans to work toward zero waste.  Companies like Thrive Market, Subaru, Xerox, and Anheuser-Busch are also moving toward zero-waste manufacturing plants.

There are obvious benefits associated with zero waste, such as reduction of negative environmental impacts like climate change, air pollution and the waste of precious resources. Less obvious are economic benefits such as additional jobs for recycling and diversion services.

But is zero waste truly possible?  Sure, there are models like the Japanese town of Kamikatsu, where there are no garbage trucks and the 1,700 residents must sort their trash into 34 categories before bringing it to the recycling plan themselves.  But what about urban cities like New York, and San Francisco?  One way that some large cities are achieving “zero-waste” is by using waste-to-energy (WTE) methods—essentially, burning trash as fuel for generating power, instead of coal, oil, or natural gas.   In China, WTE is viewed as a low-cost renewable energy strategy, and the Chinese government is building the largest WTE plant in the world, that will turn a third of Shenzhen’s trash into energy every day.  Similarly, New York, with non-existent local landfill space, aims to achieve 90% of waste diversion, by relying on WTE to dispose of 25% of their waste.  Other cities, like San Francisco, do not view WTE as an acceptable part of a zero-waste plan.  In achieving 80% diversion rate for waste, San Francisco processed less than 1% of its waste through WTE.  However, it is uncertain whether San Francisco will be able to continue working towards true “zero waste” without greater reliance on WTE.

Some experts question whether WTE is the right solution, due to the possibility that it would generate harmful residual pollutants in the air, land, or water.  For residents living near WTE plants, this is a grave concern.  In Shenzhen, construction of the largest WTE plant—located just north of the city’s major drinking water reservoirs—was met with protests by several dozen residents fearing air and water contamination from the ash, wastewater, and airborne pollutants of the incinerated waste.

Until zero-waste cities become the norm, there is little hard scientific data to either validate or refute these fears.  Use of WTE as part of a zero-waste strategy can be a solution, or it can be another big problem.  Thus, the question is no longer, can large cities achieve zero-waste?  The question is, how?

California Farm Bureau Report “Commitment to Conservation”

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By Haley Costamagna

Commitment to Conservation

As a person with deep ties to rural parts of Northern California but studying environmental law in the San Francisco Bay Area, I often encounter the myth that farmers and rancher oppose environmental protection and the environmental movement. However, nothing could be further from the truth.  While farmers and ranchers do not always agree with environmentalists and regulators, there is much they do agree on. I have family and friends involved in a variety of agricultural commodities, such as wine grapes, timber, row crops, cattle, and dairy cows. Since I have these connections, opportunities arose for me to observe exactly how farmers care for their land. In my experience, farmers are dedicated to improving their land and protecting the environment plays an integral part in doing so. In 2002, the California Farm Bureau Federation published the Report, “Commitment to Conservation,” which explores exactly how farmers and ranchers protect the environment. The California Farm Bureau Federation’s National Affairs and Research Division interviewed fifty different farmers and ranchers and analyzed the voluntary actions they are taking to enhance wildlife. The Report breaks up California into eight different regions: North Mountain Region, North Coast Region, Sacramento Valley Region, Central Valley Delta Region, San Joaquin Valley Region, Sierra Region, Central Coast Region, and South Mountain/Valley Region. I choose to look specifically at some of farmers and ranchers in the North Mountain Region, North Coast Region, and Central Valley Delta Region because of my personal connections to those regions.

North Mountain Region

Herb Jasper’s cattle ranch is home to populations of mule deer, antelope, elk, geese, ducks, pheasants, quail, and at least eight species of fish. Jasper serves on a committee designed to deal with thriving elk population. Further, Jasper has been implementing stream conservation in order to preserve fish habitats including the red-band trout that at one time was a candidate for listing on the Endangered Species Act. Jasper has worked with California Department of Forestry, Bureau of Land Management, Trout Unlimited, US Fish and Wildlife Service, CA Fish and game, and the California Farm Bureau. Although many agencies are helpful, sometimes working with so many different agencies with varying goals makes things difficult.

George McArthur’s cattle ranch and crop fields are home to many species. McArthur is involved in stream bank restoration, planting willows, bank stabilization projects, tail water return systems, and rotational grazing. Sometimes while harvesting, McArthur will find eggs that he incubates and releases the birds later. McArthur emphasizes that he feels a sense of responsibility to implement conservation efforts in order to not only improve his operation but also to improve wildlife.

Mike Bryan is a fourth generation cattle rancher and hay farmer. Bryan conservation practices include fencing off the riparian zones for controlled grazing, riverbank improvement, and nesting habitat for wildlife.

North Coast Region

Frank Leeds is a vineyard manager in Napa County. His main focus has been on river restoration caused by erosion issues. The river restoration plan implements living systems such as willow mattresses in order to stop the erosion of the river and restore stream banks. Leeds has also worked to remove wild non-native plants from the region.

Larry Mailliard’s forest ranch is 10,000 acres of old growth, redwood, Douglas fir, and oak stands. Mailliard selectively harvests dilapidated trees and has planted over 900,000 seedlings surpassing the California Department of Forestry’s standards. Milliard does have some concern over new regulations each year which have driven up harvest costs as well as paperwork. Harvest plans are now 200 pages as compared to 20 pages. Further, Millard’s ranch is home to the spotted owl so old growth areas on his ranch are protected.

Central Valley Delta Region

Randy and Brad Lange’s wine grape vineyards are home to quail and owls. Lange’s bio-sustainable farming incorporates sustainable management practices such as planting native trees and grasses, controlling weeds, targeting pesticide use, planting cover crop, and installing 70-80 owl boxes.

Harley Graese is the California Waterfowl Association District Manager. The CWA started a project in order to protect the wood duck. Many local farmers and landowner have contributed to the project by monitoring and maintaining nesting boxes.

Key Takeaway

There are a number of key takeaways that the report provides. First, these few example demonstrate not only a variety of actions that farmers and ranchers have taken to improve the environment, but also shows that many of the methods used are fairly easy to implement and cost effective in the long run.  Second, most farmers respect wildlife and appreciate the ways wildlife contributes to their operations. Third, several of the farmers interviewed emphasized the need and effectiveness of voluntary involvement. Thus, imposing more regulation to improve the environment may sometimes not be as effective as encouraging people to use good environmental practices. That may be due to the fear that land rights will be restricted if mandatory regulations are implemented or because farmers disagree with the sometimes burdensome process.

I truly believe that many ranchers and farmers respect the land they share with wildlife and strive to protect and maintain wildlife. However, I know that sometimes restrictions are needed.  However, implementation of environmental objectives by non-regulatory means, including voluntary efforts, can also be just as effective if not more so.  In the end, by educating and incentivizing farmers, governmental agencies gain allies and strengthen support of those communities that are oftentimes closest to the environment that is to be protected, enhancing the effectiveness of the government’s efforts to preserve the environment for generations to come.

 

Margaret Russell Op-ed on Masterpiece Cakeshop v. Colorado Civil Rights Commission

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Here’s a thoughtful op-ed piece by my colleague Margaret Russell on the pending Supreme Court case regarding a Colorado baker’s violation of the state’s public accommodation anti-discrimination laws in refusing to sell a wedding cake to a gay couple’s due to his religious beliefs:  https://www.dallasnews.com/opinion/commentary/2017/12/01/wedding-cake-debate-serving-public

 

California Bar Success

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“Graduates of Santa Clara University School of Law have exceeded the California ABA-accredited law school average pass rate on the state’s bar examination for the third year in a row.

Santa Clara Law’s pass rate for first-time takers for the July 2017 exam was 78%. This is 8 points higher than the average for first-time takers from California ABA-accredited law schools, 18 points higher than the average for all first-time takers, and 29 points above the overall pass rate.”

For the full news, see this link to SCU Law website:

http://law.scu.edu/news/santa-clara-law-bar-passage-rate-exceeds-state-average-for-third-consecutive-year/

Managing Water

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By Shannon Cullen and Cynthia Yuan

A recently published study by Oxford University researchers on water sustainability examined not only how water is invaluable to people, the environment, agriculture, and industry, but that safe drinking water is an imperative for human survival. In fact, the amount of money put into safely-managed, universal drinking water and sanitation is substantial. Water is also essential for sustainable development, a part of each of the 17 U.N. Sustainable Development Goals, ranging from ending poverty and hunger to sustaining societies and peace.

The Controversy

As global concern over water security has grown, so has been attention to the adverse effects of water scarcity, pollution, and flooding. In 2015, Oxford researchers reported that the economic losses of water shortages, insufficient water supply and sanitation, and flooding would amount to roughly 500 billion U.S. dollars yearly. Last month, the World Bank revealed that the cost of a drought to cities is four times greater than that of a flood. A single drought in rural Africa can cause a chain reaction of deprivation and poverty for generations.

According to the Oxford study, the expanding consensus across the globe is that challenge of managing water is about more than money. It is about the underlying governance challenge of devising effective water policies and investments. Dustin Garrick of Oxford said, “The objective of our research is to show why we need to rethink the value of water, and how to go about it, by leveraging technology, science and incentives to punch through stubborn governance barriers. Valuing water requires that we value institutions.” Richard Damania of World Bank Water Practice also stated, “Multiple policies will be needed for multiple goals. Current water management policies are outdated and unsuited to addressing the water related challenges of the 21st century.” The international team at Oxford also suggested recently that managing and valuing water demands organized action across four priorities: measurement, valuation, trade-offs, and capable institutions for allocating and financing water.

Our Take

            As an environmental matter, the world is at a turning point. Nations across the world are finally realizing that current policies and human water habits are not sustainable. The recent research performed and pushing for change in U.N. goals is absolutely necessary for positive change to actually occur. Water waste and inappropriate handling of safe, clean water has reached a point where nations are spending billions of dollars on water. Future policies will have to make water a very high priority so generations to come and the planet can manage water sustainably. These policies should follow Oxford’s suggestion of action across four priorities: measurement, valuation, trade-offs, and capable institutions for allocating and financing water. If we measure the amount of water necessary for sustaining agriculture, the planet, and human life, we can assess its value and place more restrictions on the usage of water. We should also compromise, using trade-offs, to use less water for unnecessary or excessive things and put that water to better use. Allocating and financing water to keep track of water usage and limit waste will be essential to water sustainability. Water should be placed in the right hands for responsible and appropriate usage of the precious resource. Ultimately, making laws and policies more strict and penalizing water waste will be crucial for the sake of the environment and life across the globe.

 

 

 

           

 

Fracking: How the Disclosure of Fracking Documents Affects Reliance on Natural Gas

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By Cynthia Yuan and Shannon Cullen

Background

Not all fossil fuels are equal in the equation for carbon emissions. Natural gas continues to be a source of energy that is deemed “cleaner” than coal, with lower carbon emissions. One type of natural gas extraction is hydraulic fracturing (“fracking”), which has become more prevalent with modern-day technology. Fracking describes the process in which companies extract natural gas embedded in shale, a type of fine-grained sedimentary rock. Drillers inject a mixture of water, sand, and chemicals into the shale formation to create fissures for the gas to come up. Fracking has become so lucrative that companies are going to extreme lengths to protect their interests. Imaginative strategies companies implement now includes filing for copyright protections for fracking documents. However, companies may not be very successful.

Controversy

Fracking has been a controversy among environmental groups and the general public due to a variety of reasons, such as chemicals leeching into the groundwater or earthquakes occurring when active faults are drilled.  However, the main controversy is whether disclosures of certain documents lowers the bar for other companies to enter the fracking industry.

In the case of Kern River Gas Transmission Co. v. Coastal Corp., Kern River sought Commission approval to construct a pipeline from Southwestern Wyoming, through Utah and Nevada, to Southern California. Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1460 (5th Cir. 1990). During this process, Kern River disclosed topological maps it had prepared at its expense. A competitor then got ahold of these maps. In an unusual move, Kern River registered the maps with the Copyright office and sued for protections under copyright law. The Fifth Circuit held that the maps were not protectable under the Copyright Act. As a result, competitors freely obtained information pertaining to the locations of natural gas as well as the proposed pipeline route.

This ruling has the potential for lowering the bar for companies to enter the industry, since companies would not need to bear the expense of creating its own maps. Critics fear that with the entry lowered, more companies may enter the industry, and as a result, more fracking may occur. More competition will also lower natural gas prices, increasing overall natural gas dependency.

Analysis/Evaluation

Although there is an argument that not protecting fracking maps will result in more companies entering the industry and result in more fracking, the opposite may in fact be true. Allowing the information to be made public may alert the public about shale gas under their properties. Property owners will then be warned and could take measures such as hold out against sales by gas companies or move. Gas companies could then encounter more difficulty and greater cost from homeowner actions. More importantly, the Copyright Act was not intended to serve as an environmental regulatory tool, and in applying the relevant law, courts should decide whether something is copyrightable without speculating about potential market impacts. Companies should also recognize that copyright law is not an avenue for protecting information.

Conclusion

With the technology today, fracking has become so lucrative that companies are resorting to unusual strategies to preserve their wealth. It is important to recognize that controversial cases do not always result in poor environmental decisions. However, in the absence of more sustainable energy options, companies will continue to anger critics on both sides of the environmental debate.

 

 

Reform of Administrative Law and Enforcement in China

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China LAO Delg2 11-13-2017I had a very interesting Monday morning earlier this week, which happened to be in a law firm conference room in Palo Alto.  I gave a presentation introducing the basics of American administrative law to a delegation of senior officials of the Legislative Affairs Office (LAO) of China’s State Council (as well as some officials from provincial legislative affairs offices).   The group of 14 officials are in the US on a study tour, spending this week in the SF Bay area and next week in Washington DC.  In DC, they’ll visit the US Department of Justice and the Interior Department.

When my research assistant Shuyang had researched ongoing activities of the LAO, he came across an interesting administrative reform pilot project, loosely translated as the 3 systems (pillars?) of administrative law enforcement.  These pilot projects, supervised by the LAO, are being implemented in many places in China and are designed to enhance government transparency and to ensure that enforcement occurs consistent with the law.  A February 10, 2017 English language press release  of the State Council  describes the purpose of this pilot project as focused on “information disclosure, full-process recording, and legal review of major law enforcement decisions.”  That appears to mean sharing more information about administrative enforcement processes with the public, better documentation of the enforcement proceedings themselves as well as evidence collection, and ensuring through LAO audits that enforcement processes comport with applicable law.

That is an interesting development, based on what I have seen in my previous lives as head of the US-China Partnership on Environmental Law at Vermont Law School and as EPA Deputy General Counsel.  In many respect, any reform effort that increases transparency of government decision-making, especially administrative enforcement processes, and ensures that enforcement proceedings comport better with the law will be really valuable in moving China closer to the rule of law.

However, I have to confess that none of that came up in my discussions with the delegation.  What did come up was a government proposal to add lawyers to each ministry/agency in China.  The parallel that some of the officials seemed to draw to the US are agency general counsels.  (It was only when they mentioned this that I understood the context of their numerous questions about my former role as EPA Deputy General Counsel.)  I have no idea how definitive this proposal is, but it seemed intriguing.  Compared to the US government, the role of lawyers is rather limited in China’s government bureaucracy.  Formally introducing “general counsel” officers into China’s government ministries would certainly focus government decision-maker more explicitly on the legality of their actions and the rule of law.  At the same time though, it was not clear to me how such new legal officers would interact with existing entities in the bureaucracy that already house lawyers, such as the Law and Policy Department within the Ministry of Environmental Protection.   That Department has always had great lawyers.  I guess we’ll  have to stay tuned to future developments.

China LAO Delg 11-13-2017Here’s a picture of me with  the head of the delegation, Director General Li Mingzheng of the Government Legal Affairs Research Center in the LAO.  The gift in the picture is a stylish silk neck tie.  Undoubtedly, it will seriously enhance my wardrobe.  But even with out that gracious gift, the discussion with the delegation members itself was well worth my time that morning.

ABA/ELI Report “Environmental Protection in the Trump Era”

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Recently, The American Bar Association’s Civil Rights and Social Justice Section, together with the Environmental Law Institute, published the Report “Environmental Protection in the Trump Era.”  The report is a thoughtful analysis of the major changes in the EPA that have occurred since President Trump took office in January 2017 and is well worth a read. In our view, the following three issues described by the report should present the greatest concerns for the American public:

“Two-For-One” Executive Order (or Executive Order 13771)

This order imposes two requirements: First, it mandates that for every new regulation adopted, two existing regulation have to be repealed (“two-for-one requirement”). Secondly, it establishes the “cost offset requirement”, insists that the cost imposed by new regulations must be compensated by the elimination of the existing two.

As costs are the only consideration, the order therefore discourages new beneficial regulations. Moreover, finding regulation for repeal will be difficult, because in existing regulations cost have often been internalized into efficient processes. So there is little, if any, cost saving available from the repeal of a regulation. However, the president’s intention by issuing this order appears to be to ease “over-regulation” and boost the expansion of small businesses.

Withdrawal of Funding for Regulation and Enforcement

Under The Trump Administration, the actions taken by the EPA so far indicate further that many of the rules issued during the previous administration will be frozen, reviewed, and amended. The goal appears to be to cut costs of regulation and enforcement. This effort comes with great concern for long term effects since it has been reported that the contemporary EPA’s cost-benefit analyses underestimate unforeseeable impacts on ecosystem services.

Regulations in jeopardy include: The Clean Power Plan, Waters of the United States rule, and EPA standards on methane, ozone, and toxic discharge limits. Additional costs will also be cut by decreasing enforcement measures; there will be limitations on requirements that demand polluters to pay for environmental depletion, fewer actions initiated by the EPA, smaller penalties, and caps placed on attorney’s fees. This is reflected in Trump’s FY 2018 Budget. It requests a 31% reduction in overall EPA funding; the gradual reduction in EPA responsibilities shows the agency’s preparation for this cutback.

Potential Problems of Future Regulations

The new Administration seems to be putting roadblocks in the EPA’s way, such as constraining agencies’ use of scientific data. If any of the pending bills in Congress are enacted, they would add structural constraints to the federal agencies’ ability to regulate. The Trump Administration and Congress have not given an opinion on how the states will be allowed to fill in the gaps in federal protections. Further, the Trump Administration’s actions dealing with air, water, and soil pollution have implications for vulnerable communities.

Key takeaway

When reflecting on the Report it appears to us that the Trump administration’s attempts to simplify the system are actually making it more complicated. The new EPA applies an incomplete cost benefit analysis, which is a source of controversy in the practice of environmental law. Additionally, the Administration’s goal is to help small businesses thrive, but how this is to be achieved is unclear. There is little question that businesses would likely be able to operate more profitably if there were fewer regulations. But with no market-based incentives to be environmentally friendly in the first place, fewer regulations would only result in inadequate protections for public health and the environment.

Furthermore, it appears that people in the lower socioeconomic strata will be the most adversely affected by EPA constraints. Trump’s EPA has minimized reliance on scientific data for standard promulgation in order to achieve procedural brevity. However, with less data to rely on, formulating pollutant discharge limitations will likely take even more time. In conclusion, the administration should look at new ways to handle the problems effectively (e.g., incentivizing advanced clean technology) rather than simply cutting entire programs.

Arielle Canepa, Haley Costamagna, and Josiane Weder

 

Reminder: Regarding Job Openings, Internships, Fellowships, and Other Environmental Law Related Opportunities

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I regularly post such items when they come across my email or I become aware of them otherwise.  A lot of what I post is related to non-profit, academic, or the government sector (including international organizations).  These items are usually sorted below the blog entries that I write about substantive issues and thus come further down on the front page.  The easier way to view these opportunities postings is to click on the “Jobs and Other Opportunities” link at the top of the blog page.